Terms, Conditions, Shipping, and Returns.

SmartBee Terms of Service

Updated May 25, 2017

Swarm Technologies LLC, dba SmartBee Controllers (“SmartBee,” “We” or “Us”), the owner of the SmartBee website www.smartbeecontrollers.com (the “Site”), the SmartBee Launcher (the “App”), and the SmartBee software and hardware products (the “SmartBee Products”) welcomes you (a single natural or legal person, hereinafter referred to as “You”) to our community!

The Site, App and SmartBee Products (collectively, the “Service”) allow You to monitor and control environmental conditions in Your garden, control Your garden environment, access gardening and product information, communicate with SmartBee, and connect with other gardeners. Before You begin using the Service, please read the following Terms of Use (“Terms”) carefully. These Terms govern Your use and access to the Service, including functionality available through the Service which may be provided by third parties, during both any free trial/demonstration period and any future access or use.

Your use of the Service is also governed by our separate Privacy Policy (www.smartbeecontrollers.com/privacy-policy) and End User License Agreement (www.smartbeecontrollers.com/eula). By downloading or otherwise accessing or using the Service, You agree to these Terms, the Privacy Policy and the End User License Agreement. Your access to and use of the Service is expressly conditioned on your compliance with these Terms, the Privacy Policy and the End User License Agreement. If You do not agree with any of the Terms, the Privacy Policy or the End User License Agreement, do not install, download or otherwise use the Service. Note that any violation of these Terms may result in termination of Your access to the Service. In the event that there is a conflict between the Terms, the End User License Agreement, and/or the Privacy Policy, these Terms shall govern.

We reserve the right to modify these Terms at any time. If these Terms change, the revised Terms will be accessible through the App and Site. We will also change the “updated” date on this page to reflect the date of the modification. Please check back periodically. In addition, when using particular elements of the Service, additional policies, guidelines, rules, and terms may apply, which are hereby incorporated by reference into these Terms.

The Service

The Service allows You to monitor events in Your garden and control certain environmental variables in Your garden wirelessly and remotely through a computer, tablet, or phone. The Service also provides You with access to gardening and product information, as well as a means to connect with other gardeners and users through social media, newsletters and blogs. You can also contact SmartBee directly through the Service.

We reserve the right change the Service and the features of the Service at any time.

Terms

You are responsible for maintaining the security of any of Your computers, phones, tablets or other electronic devices that contain the App or SmartBee Products.

You are responsible for maintaining the security of Your SmartBee login information, including your username and password, as well as your access information related to the Online Store (discussed below).

You are responsible for all content and activity created or shared using the Service (the “Content”).

The Service is intended to allow a user to monitor environmental events in his/her garden, control his/her garden’s environment, access gardening and product information, communicate with SmartBee, and connect with other gardeners (the “Intended Purpose”). You agree that You will use the Service for the Intended Purpose.

You may not use the Service for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in Your jurisdiction. You agree that if you engage in illegal or unauthorized use of the Service, or use the Service for any illegal or unauthorized purpose, You agree that You will be solely responsible for your illegal or unauthorized use, and will indemnify us from any claims arising out of Your illegal or unauthorized use.

User Representations/Warranties

While using the Service, you agree:

You are over 18 years old;

You have the full legal capacity to agree to these Terms;

The Content is either content created by you, or content that you have the permission of the intellectual property owner to duplicate.

You will not use the Service to violate any applicable laws or regulations;

You will not include in your Content any threatening, defamatory, abusive, obscene, pornographic, inappropriate or profane material or any other material that could give rise to any civil or criminal liability under applicable law.

You will not include in your Content any image, sound or word(s) that promote bigotry, racism, hatred or harm against any individual or group.

You will not include in your Content any image, sound or word(s) that are in violation of any rights of any third parties, including intellectual property laws.

You will not modify, sublicense, adapt, translate, reverse engineer, sell, decompile or disassemble any portion of the App, Site or SmartBee Products.

You will not use the Service to abuse, harass, threaten, stalk or otherwise violate the rights of others.

You will not transmit any software or other materials that contain any viruses, worms, trojan horses, defects or other items of a destructive nature.

You shall register for the Service and communicate with SmartBee using true and correct information, including Your legal name and up to date contact information.

You shall update any changes that are made to Your name and/or contact information as soon as reasonably possible.

You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

We may suspend or terminate your access to and use of the Service immediately if you fail to comply with the above terms.

Online Store

We offer the SmartBee Products for sale in our online store (the “Online Store”). The specific items and prices may be gathered from the details provided in each case at the Online Store.

Use of the Online Store. If You intend to place an order for the SmartBee Products through the Online Store, You must first register to use the Online Store. All information requested during registration must be true and correct. In particular, the You may not enter any third-party data while registering for the Online Store. The registration is a request to access the Online Store. If we approve of your registration, You will be sent a confirmation email containing Your personal access data. This confirmation email constitutes Our acceptance of Your request to access the Online Store. We reserve the right to turn down a registration for the Online Store for any reason.

Terms of Delivery for Products. The SmartBee Products will be dispatched to You using accepted delivery carriers of our choice. You will be given options regarding delivery times with their corresponding costs as provided by the active shipper. Standard ground shipments typically take 5-7 days. We reserve the right to determine whether or not to fulfill partial deliveries depending on item availability. On certain occasions, order may take 3-4 weeks for delivery depending on items being ordered and or prevailing market conditions.

Prices, Terms of Payment. The prices for the individual SmartBee Products are stated in the respective presentation of each item in $US. We reserve the right to offer different prices to different categories of customers based on our business model. Payment for an individual order must be received prior to shipping and is due immediately on completion of the order. The payment methods we accept may vary over time. As of this writing, purchases of SmartBee Products may be paid by credit card, PayPal or, upon our approval, bank remittance. If You fail to honor Your payment obligations, or if any amounts paid are reverse-charged, we will be entitled to block Your access to the Online Store and/or terminate the Service, while at the same time reserving the right to assert further claims. If access is blocked because receivables are still outstanding and if Your outstanding balance is made current, Your access may be reactivated at our sole discretion.

Money Back Guarantee. SmartBee provides a 30-day money back guarantee on all hardware purchases. To return some or all of your order, contact Customer Support at 888.650.3797. Customer Support will email you a Money Back Authorization (“MBA”) form that should be filled out and returned to Customer Support at support@smartbeecontrollers.com. This completed form must be received by no later than 30 days after the original ship date of the hardware being returned. Customer Service will return an approved copy of the MBA form to you. No returned merchandise will be accepted without an approved MBA form. All return shipping costs are the responsibility of the customer. For a full refund, the returned merchandise must be received in our fulfillment center undamaged, in working order, and in the original packaging. If hardware is undamaged and in working order but packaging is not reusable, a 10% restocking fee will be assessed. A refund will not be provided for hardware that arrives damaged, therefor we suggest the package be sent insured.

License Grant

You hereby grant to us and our third party providers and designated agents and subcontractors a non-exclusive, royalty-free license to use, publish, copy, modify, create derivative works of, transmit, display and distribute your Content. In addition, you warrant that all moral rights in any Content and uploaded materials have been waived and do hereby waive any such moral rights.

Intellectual Property Rights and Content Ownership

SmartBee Intellectual Property

The Service’s software, hardware, designs, text, graphics and logos, certain other names or logos, including the “look” and “feel” of the App, Site and SmartBee Products (including color combinations, button shapes, layout, design and all other graphical elements) are protected patents, trademarks, service marks, and copyrights of SmartBee (the “SmartBee IP”). All other product and service marks are the trademarks of their respective owners.

Subject to and conditioned upon your compliance with these Terms, we grant to you a revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Service. Except for such limited right to access the Service in accordance with these Terms, the SmartBee IP and any text, sounds, data, links, graphics, and other materials incorporated into the Service and the overall “look and feel” of the App, Site and SmartBee Products remain the property of SmartBee or its licensors or suppliers. You may not use, reproduce, distribute, sell, resell, duplicate, modify, transmit, or use the App, Site or SmartBee Products, or any portion thereof, for any commercial purpose without our written consent.

You agree to be bound by third party licenses of software or content that is available or part of the Service and to abide by the terms of use of any such third party software or content.

You acknowledge and agree that by sharing Your Content through the Service, images, video and audio may be public, and will be viewed and accessed by members of the public. You further understand that we will not be responsible or liable for third-party use of Your Content.

Copyright Violations and the DMCA

We are committed to protecting copyrights and expect users of the Service to do the same. At our discretion and in appropriate circumstances, we may terminate or prevent access to all or part of the Service’s features by users who infringe the intellectual property rights of others.

We abide by the federal Digital Millennium Copyright Act (“DMCA”). If You believe that a user’s Content is your proprietary work and has been copied in a way that constitutes an infringement of Your copyrights or other intellectual property in that work, please immediately notify us of any such copyright or other intellectual property rights infringement. Similarly, if You disagree that your Content constitutes an infringement, You may send a counter-notification. In either case, Your written notice should be sent to our designated agent as follows:

Please note that third party providers have their own DMCA procedures. If You believe a user on a third party site is infringing on your propriety work, please use that third party’s DMCA complaint procedure.

Copyright infringement Notification. To file a copyright infringement notification, please send us written communication that includes substantially the following (please consult Your legal counsel or see Section 512(c)(3) of the Copyright Act to confirm these requirements). To expedite our ability to process Your request, please use the following format:

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website.

Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Counter-Notification. If You disagree that your Content is an infringement of another’s work, you may elect to send us a counter notice. To be effective Your counter notice must be a written communication provided to our designated agent that includes substantially the following (please consult Your legal counsel or see Section 512(g)(3) of the Copyright Act to confirm these requirements) To expedite our ability to process Your request, please use the following format:

A physical or electronic signature of the subscriber.

Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

Please also note that under the DMCA, any person who knowingly materially misrepresents that material or activity is infringing or was removed or disabled by mistake or misidentification may be subject to liability. All reports and inquiries will be kept confidential, except to the extent necessary to investigate any alleged violation and enforce the terms and conditions of these Terms. Before sending either a copyright infringement notification or counter-notification, you may wish to contact a lawyer to better understand your rights and obligations under the DMCA and other applicable laws. The following notice requirements are intended to comply with our rights and obligations under the DMCA and do not constitute legal advice. Where applicable, we will comply with the procedures outlined in the DMCA.

Sharing Content

The Service may allow You to share some or all of Your Content with others. Please note that when You share Content, the recipient may be able to share this Content with others and/or make copies of the Content.

Links to Third Party Sites and Applications

The Service may contain links or provide access to third party websites and applications (“Linked Sites”). The Linked Sites are not under our control, and we are not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. We are not responsible for any other form of transmission received from any Linked Site, nor are we responsible if the Linked Sites are not working appropriately. We are providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by us of the site or any association with its operators, or guarantee that the content contains accurate information. You are responsible for viewing and abiding by the privacy statements and terms of use posted at the Linked Sites. Further, we are under no obligation to link to any site.

Third Party Service Providers

From time to time, we may partner with various third parties and applications to provide additional functionality to the Service (“Third Party Functionality”). Such Third Party Functionality may be subject to additional terms and conditions, and You should contact the appropriate Third Party directly for their terms and conditions. You hereby warrant that you will comply with all such third party terms and conditions with respect to the Third Party Functionality. You acknowledge and agree that such Third Party Functionality may be terminated by us at any time for any reason without any right of refund of any fees that may have been paid. While we will make reasonable efforts to notify you before terminating any such Third Party Functionality, failure to so notify will not be breach of these Terms.

Cancelling or Terminating Access to the Service

We reserve the right to cancel and/or terminate your access to and use of the App and Site if we, in our sole discretion, determine that you have violated these Terms or the End User License Agreement. We will also terminate your access to and use of SmartBee software products should you violate these terms or the End User License Agreement. We will notify you seven (7) days prior to the termination of your access to the App, Site, and SmartBee software products.

You may stop using the Service at any time. SmartBee will delete your profile and Online Store account if You give SmartBee notice that you would like to terminate your profile or Online Store account. Notice may be sent by email to support@smartbeecontrollers.com. Once Your profile is deleted, you may not have access to certain features of the Service. Once Your Online Store account is deleted, You shall no longer have access to the online store and shall therefore no longer be able to access any orders for SmartBee Products which you previously placed.

Miscellaneous

You acknowledge that we may amend the App, Site and SmartBee Products at any time, as needed to help maximize the operation and availability of the Service and to prevent abuses.

If any part of this Agreement is held to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision most closely matching the intent of the original provision and the remainder of the Terms will continue in effect.

The failure of SmartBee to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.

U.S. Government Restricted Rights

All materials, information, software and other products supplied by or through SmartBee are provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in these Terms and as provided in FAR 12.212(a) (1995), FAR 52.227-19, FAR 52.227-14 (ALT III), DFARS 227.7202-1(a) and 227.7202-3(a) (1995) and DFARS 252.227-7013 (c)(1)(ii) (OCT 1988) et seq. or their successors. Use of any of such by the Government constitutes acknowledgment of our or our suppliers’ proprietary rights in them. In the event that the Terms, or any part thereof, are deemed inconsistent with the minimum rights identified in the Restricted Right provisions, the minimum rights shall prevail.

Indemnification

You agree to indemnify, defend and hold SmartBee, SmartBee’s officers, directors, employees, agents, licensors, suppliers and any third-party providers to the Service harmless from and against all claims, liabilities, losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from (i) any violation of these Terms, or any activity related to access to or use (including negligent or wrongful conduct) by you or any other person of the Service (ii) any Content you create with, or share using the Service; and/or (iii) a claim that your Content infringes third party intellectual property rights.

You further agree that you will indemnify and hold SmartBee and its third party providers harmless in respect to any claim of violation of a third party’s rights or intellectual property laws.

Choice of Law

The parties agree that these Terms and any claims hereunder shall be governed by and subject to the state and federal laws of the state of California, without regard to its conflict of law provisions, and hereby consent to jurisdiction and venue in the courts of the state of California, county of San Diego.

Export

You are responsible for compliance with all local laws, and you are required to comply with U.S. export laws and regulations when you use or export any software or materials provided through the Service.

Disclaimer of Warranties

SmartBee offers a one-year limited warranty for the SmartBee hardware only, valid for one (1) year from the date of purchase and only for the original purchaser (the “Warranty Period”). SmartBee will replace any defective unit at no cost to the original purchaser with a new unit, or in SmartBee’s sole discretion, a comparable unit during the Warranty Period. Proof of purchase will be required for all warranty claims.

OTHER THAN THE LIMITED WARRANTY DESCRIBED ABOVE, THE SERVICE, CONTENT AND/OR MATERIALS AVAILABLE THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SMARTBEE AND ITS THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SMARTBEE MAKES NO WARRANTY THAT THE SERVICE’S FUNCTIONS AND/OR FEATURES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT THE APP, SITE AND SMARTBEE PRODUCTS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SMARTBEE AND ITS THIRD PARTY PROVIDERS MAKE NO WARRANTY REGARDING ANY SOFTWARE, GOODS, SERVICES, SPECIAL OFFERS, OR THE DELIVERY, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS OR RELIABILITY OF ANY SOFTWARE, GOODS OR SERVICES, PURCHASED, ACCESSED OR OBTAINED THROUGH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SMARTBEE OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL SMARTBEE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY THAT RESULTS FROM YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICE, FROM ANY CHANGES TO THE SERVICE, OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT OR DATA, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT SMARTBEE IS NOT LIABLE FOR YOUR GARDEN’S PRODUCTIVITY AND THE HEALTH OF YOUR GARDEN, AND THAT THE SUCCESS OR FAILURE OF YOUR GARDEN RESTS ENTIRELY WITH YOU.

YOU UNDERSTAND AND AGREE THAT CONTENT AND/OR DATA CREATED THROUGH THE SERVICE AND/OR SHARED THROUGH THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR CONTENT AND/OR DATA THAT MAY RESULT IN THE DOWNLOAD OR UPLOAD OF ANY MATERIAL. YOU ARE SOLELY RESPONSIBLE FOR CREATING BACK-UPS OF YOUR CONTENT. FURTHER, SMARTBEE WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SERVICE.

YOU UNDERSTAND AND AGREE THAT SMARTBEE WILL NOT BE LIABLE FOR YOUR CONTENT, DATA AND GARDEN AND EXPRESSLY DISCLAIMS ALL LIABILITY RELATING THERETO.